When setting the standard of care against which the accused’s actions are measured at the breach stage of a claim of General Negligence, the courts will almost certainly impose what is recognised as the ‘objective standard’ on that individual. This paper is to critically analyse this statement with focus to the courts application of the standard of care, and will address the following. This paper will firstly outline the ‘objective standard’ and suggest why the courts favour its application when determining this standard of care. Secondly, the variations of this standard will be considered, in particular to circumstances that require a subjective approach. The necessity of this standard will be presented subject to cases concerning children and those professing to a professional standard. A fundamental issue to address is whether negligence should be defined objectively or subjectively.1 As the objective standard is a prominent ruling within the law of Tort, it must be questioned as to what extent this approach adopted by the courts is suitable when determining the standard of care. After critically evaluating both applications of the courts, the proposition is that current objective approach is sufficient to a certain degree, nevertheless should be subjected to exceptions where an alternative test may be appropriate to certain circumstances.
To determine whether a defendant has fallen below the standard of care, the courts will impose what is known as the objective test. When setting this standard, the courts will compare the actions of a defendant to those of a ‘reasonable person’. This can be best explained by Baron Alderson in Blythe v Birmingham2 where ‘Negligence is the omission to do something which a reasonable man would do or doing something a reasonable man would not do’. Though this statement suggests the availability of negligence as an action, the ‘reasonable man’ test has been adopted as a foundation for determining the appropriate standard of care in negligence.3 Generally, defendants are expected to behave in a manner consistent with this hypothetical reasonable person and will be negligent if they have fallen below this standard, or failing to do something which the reasonable man would do. Therefore, the objective standard is synonymous with the reasonable person standard and relates to an individual’s conduct within society.4
An initial interpretation of the ‘reasonable man’ was denoted by Sir Richard Henn Collins as ‘the man on the Clapham omnibus’5 although a more contemporary approach by Lord Steyn notes ‘travellers on the underground’ in McFarlane v Tayside Healthboard6. The objective test, established in Vaughn v Menlove7, does not consider an individual’s personal idiosyncrasies.8 In application of this test, the courts will not only consider the characteristics of the defendant but focus on the expectation of a reasonable person when conducting a specific action or activity. So as to establish this standard, the courts may look to the ‘act and not the actor’ as applied in Wilsher v Essex9 where a junior doctor’s actions were held to the same standard of a qualified doctor.
However, we must acknowledge that this is not a standard of perfection and on occasion, a reasonable person would make mistakes for instance in Birch10, the defendant was not liable for the serious injuries suffered by a drunk pedestrian who stepped out in front of their car.
Now that this standard has been outlined, we must consider the court’s applications of this test. An example to note is Nettleship v Weston11 where a driving instructor had been injured as the learner driver had negligently crashed. Does the standard of care lower for learner drivers? Lord Denning stated, “his incompetent best is not good enough. He must drive in as good a manner of skill, experience and care”12 therefore the standard of care expected is the same as that required by a qualified driver. Equally, a householder doing DIY work must not fall below the standard to be expected of a reasonably competent carpenter in doing the work as imposed in Wells v Cooper13. The rationales behind these cases imply the necessity to uphold the standard of the reasonable person. Where liability is imposed on a defendant, this test insists that the actor must be held liable where he fails to meet an objective, ideal standard.
The courts tend to adopt this objective approach due to its uniformity as a standard that is applicable to all individuals.14 In turn, this approach has measured the conduct of defendants over 150 years,15 so as to emphasize its consistency within the courts, the beneficial aspects of the standard will be explored.
Firstly, the courts may impose this standard as it ensures fairness. Lloyd LJ in Telnikoff16 implied the necessity for the application of this standard where ‘fairness is objective and is for the defendant to establish…lack of honest belief is subjective’.17 Where a defendant’s comment is fair by objective test, this portrays an honest expression of their conduct.
Secondly, the courts may impose this standard is it would be time consuming to determine the relevant capacities of every defendant. Moreover, there is difficulty to tailor the notion of reasonable care to the personal capabilities of every defendant. Thus, the courts may favour to impose the objective standard as it is not time constraining and exhaustive to achieve.
Moving on to the idea of morality, courts may favour this approach in order to set a standard of conduct whereby citizens are expected to strive to meet the criteria of a reasonable person. The courts intend for all to satisfy the reasonable person, hence upholding the law. To further support this notion, Cane suggests that the courts will continually impose this standard as it is an attempt to strike a fair balance between competing interests in freedom of action and personal security we share.18 This suggesting that the objective approach aims to achieve a fair balance. There is a necessity of establishing a generalized standard as such that is fair, time efficient and ethical.
It is apparent that the objective standard will most commonly be imposed when setting the standard of care. Nevertheless, on occasion, the courts will modify this standard where certain circumstances of particular defendants will be considered, thus deviating from the objective approach.19 Exceptions are created for those who generally will be held to the subjective standard of a reasonably careful person with the same physical and mental capacities that are in actual reality, possessed by a particular defendant.20 A subjective approach was considered in Mansfield21 which recognized that there are situations which require to focus on certain characteristics of some defendants. Consequently, this standard will exonerate the actor whose abilities are less than those of the universal norm if the actor measured up to his own lesser potential while causing an injury.22
An exception arises when the defendant is a child where the standard of care is lowered. A general rule is that children are held to a partly subjective standard that not only looks at the ‘reasonable prudent child’ but rather to a reasonable child of ‘similar age, ability and intelligence’.23 A reasoning for measuring a child’s conduct by a varying child standard instead of the reasonable man standard originates from the basic unfairness of predicating legal fault upon a standard which most children are incapable of meeting.24 In McHale v Watson25, a 12 year old defendant had thrown a metal rod at wood where it bounced off and hit the claimants eye, causing blindness. What standard should the child be held to? Owen J expressed that “the standard of a child’s conduct should be measured that reasonably to be expected of a child of the same age, intelligence and experience”, thus imputing a subjective component here.26
A more modern case to consider is Orchard v Lee27 where a 13 year-old-boy had collided with the claimant whilst playing with another child. The qualities of knowledge and experience of children are individualized-subjective-but for the purpose of determining whether or not the child was capable of perceiving the risk of injury to himself and of avoiding the danger but beyond that, there is an objective standard.28 In circumstances as such, a subjective element can be noted as the courts will scale the standard according to age of that child. Although this remains a purely objective test, we can see the modification of the objective test whereby subjective qualities such as age, knowledge, may be taken into account when considering the conduct of minors.
Moving on, we will consider the standard of defendants who are of a professional standard. So when a defendant exercises a skill and is one the reasonable man does not possess, the courts will modify the objective standard and apply a different approach where the standard is not judged according to reasonable man test. Actions of these defendants are measured against those of an ordinary skilled man professing to exercise that skill, hence they are bound those of a reasonable practitioner of that skill. In the assessment of medical negligence, the test for the standard of care expected of doctors is based on the principle enunciated in Bolam.29 A question presented before the courts was whether treatment had been administered correctly along with which standard of care should be imposed. NOT GUILTY “a medical professional is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. According to Brennan, the Bolam principle contains both subjective and objective elements where the test is the standard of the ordinary skilled man professing to have that special skill.30 Courts must subjectively look to the defendants skill.
There has been conflicting views between the objective and subjective applications where some may focus towards the fairness to individual negligence tort, but others may look to the safety of negligence tort and the broader public.31 After a critical analysis, this paper will support both approaches adopted by the courts, where the objective should remain as the traditional uniform standard and the subjective assessment should apply when certain circumstances must be accounted for.
The objective standard of care has been subject to criticism within academic literature where it has been noted to be ‘conceptually unsound in a fault-based liability system’.32 Those in objection of this approach may argue that this test has been subjected to produce harsh decisions, thus contradicting the idea of it ‘fairness’. If we consider the decision held in Nettleship, it is evident that a learner driver is unable to reach the standard of care to which she was held, imposing liability without genuine fault. The use of this uniform reasonable person standard creates some genuine allocative inefficiencies, in addition to any unfairness it might entail33.
However, we must look to positive aspects of this approach for instance it standardizes how citizens of our society are expected to behave and excel, upholding the objective application to the courts. Jules L. Coleman favours this objective standard because it comports with a generalized conception of liberty and security for all persons.34 The objective approach enables the law of tort to ensure a degree of certainty to reinforce the rules of behaviour. To refute the idea of its harshness, we can justify the decision in Nettleship. The practical justification was offered by Lord Denning MR: the injured person can recover damages from an insurer only if the driver is liable in law. So the judges must see to it that he is liable unless he can prove care and skill of a high standard. In this branch of the law, he went on, we are moving away from the concept “No liability without fault” to another, “On whom should the risk fall?”. Although the learner is not at fault in a moral sense, they are legally liable due to their insurance whereby the risk is imposed.35
Moving on to the subjective approach, a limitation according to R.W. Wright is that the “external exercise of freedom depends on sufficient security against interference by others with one’s person and property. And the use of a subjective approach makes such security impossible, “since the risks to which one could permissibly be exposed by others would depend on the subjective capacities of the particular others with whom one happens (often unpredictably) to interact”. Therefore some may argue that an objective standard is therefore better and required if our expectations are to be sufficiently secure.36
An agreement with the subjective approach is that a prescribed standard of care can reduce the process costs associated with a rule of subjective negligence in two ways. First, applying a single standard avoids the costs of ascertaining what is optimal care for a particular individual37. The subjective approach should be maintained as those that fall into the category of exceptions such as children, professionals are not unduly penalized when determining the standard of care, again will not produce harsh decisions.38
We can see that both approaches have strengths and weaknesses however within negligence cases both the objective and subjective standards have the same purposes: those members of a population who engage in an activity should be those who should engage in the activity, and they should exercise what is for them optimal care.39
In concluding the final argument, the objective approach to determining the standard of care remains to be a fundamental and vital test to the currents and is sufficient to a high extent, however certain scenarios which require a subjective approach, relating to other cases, should be met. The current system adopted by the courts is sufficient within cases of general negligence.
1 Schwartz WF, ‘Objective and Subjective Standards of Negligence: Defining the Reasonable Person to Induce Optimal Care and Optimal Populations of Injurers and Victims.’ (1989) 78(2) Geo L J 241
2 Blyth v Birmingham Waterworks Co. 1856 11 Ex Ch 781
3 Wendy Bonython Canberra Law Review (2011) Vol. 10, Issue 2, The standard of care in Negligence.
4 Principles of Tort Law by Rachael Mulheron 2016
5 McQuire v Western Morning News 1903 2 K.B. 100 at 109 per Collins MR.
6 1999 Lord Steyn at 82
7 1837 3 Bing NC 467
8 Glasgow Corp v Muir
9 1988 1 All ER 871
10 Birch v Paulson 2012 EWCA Civ 487
11 1971 3 All ER 581
12 Ibid 10
13 Wells v Cooper 1958 2 All ER 527
14 Joseph H. King, Jr., Reconciling the Exercise of Judgment and the Objective Standard of Care in Medical Malpractice, 52 OKLA. L. REV. 49, 49 (1999).
15 Blyth v Birmingham Waterworks Co. (1856) 11 Exch. 781, 784; 156 E.R. 1047, 1049 per Alderson B.
16 Telnikoff v Matusevitch 1991 1 QB 102
17 Ibid 15 Lloyd LJ, at 115
18 Tort Law by Kirsty Horsey & Erika Rackley 5th edn. Oxford University Press 2017 page 217. Cane pg. 49
19 WE Peel and James Goudkamp, Winfield & Jolowicz on Tort (19th edn, London, Sweet & Maxwell, 2014) at p 146 6-010)
20 See RESTATEMENT (SECOND) OF TORTS §§ 283–283 C, 289(a) & cmt. n, 290 (1965);
PROSSER & KEETON, supra note 1, at 169, 173–76, 179–82; Bernstein, supra note 34, at 745–47.
21 Mansfield v Weetabix 1997 EWCA Civ 1352
22 Anita Bernstein, The Communities That Make Standards of Care Possible, 77 Chi.-Kent. L. Rev. 735 (2002).
23 Torts: Outlines and Case Summaries (Law School Survival Guide) Teller Books; 3rd edition (30 September 2012)
24 David E. Seidelson, Reasonable Expectations and Subjective Standards in Negligence Law 50 Geo. Wash. L. Rev. 17 (1981)
25 1966 HCA 13
26 Principles of Tort Law by Rachael Mulheron
27 2009 EWCA 295.
28 “Standard of Care Required of Children” by Harry Schulman (1928). Faculty Scholarship Series. Paper 4596
29 Bolam v Friern Hospital Management Committee 1957 1 WLR 583
30 Tort Law Concentrate: Law Revision and Study Guide by Carol Brennan
31 Ibid 1
32 James B. Ellis, Tort Responsibility of Mentally Disabled Persons, 1981 A
33 Jeffrey J. Rachlinski, Misunderstanding Ability, Misallocating Responsibility, 68 BROOK. L. REV. 1055, 1057 (2003) (“The reasonable person test might . . . produce results wholly inconsistent with ordinary notions of justice and fairness.”).
34 Jules L. Coleman, Legal Theory and Practice, 83 GEO. L.J. 2579, 2603-04 (1995)
36 Ibid 33 pp 651–688 at 672
37 Ibid 1
38 Modern Tort Law 7/e By V.H. Harpwood
39 ibid 1?